State v. Jones
| Decision Date | 14 December 1964 |
| Docket Number | No. 49963,No. 1,49963,1 |
| Parties | STATE of Missouri, Respondent, v. Agnes L. JONES, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Hugh J. White, St. Louis, for appellant.
Defendant was charged by an indictment with unlawfully selling a narcotic drug, commonly called marijuana, to Bob Stewart (also known as John Robert Steinkoetter) on August 17, 1962, in the City of St. Louis. Section 195.020. (All references to Statutes and Rules are to RSMo and V.A.M.S., and V.A.M.R., respectively.) A jury found her guilty as charged and assessed her punishment at five years' imprisonment in a State Correctional Institution of Missouri. Section 195.200. She appeals from the ensuing judgment and sentence. Defendant was represented by counsel at the trial and in this court, her able counsel on appeal not being the same as in the trial court.
Defendant has filed a brief and makes the points and argues that the trial court erred, (1) in refusing to instruct the jury on the defense of entrapment, (2) in refusing to give five instructions offered by her, (3) in excluding from evidence defendant's Exhibits B and C, being a written statement of a witness for the State, (4) in overruling her motions for judgment of acquittal at the close of the State's case and at the close of the whole case, and, (5) in giving instruction No. 1.
A brief summary of the evidence will suffice. On August 16, 1962, John Robert Steinkoetter (known also by the name of Bob Stewart as designated in the indictment) met with police officers of the St. Louis Metropolitan Police Department and police officers of St. Louis County. He had purchased narcotics from defendant beginning in April or May, 1962, and agreed to try to buy narcotics from her again while the officers watched. For this purpose arrangements were made for a meeting the next day of Steinkoetter, the City Police Officers and an agent of the Federal Bureau of Narcotics at Forest Park. At the agreed time he met these officers and the Federal agent behind Jefferson Memorial in the park. Detective Longinette gave him $20 in currency with which to make a purchase of narcotics from the defendant. In the presence of this Detective, Steinkoetter called defendant from a nearby public telephone booth and upon reaching her told her that he needed morphine or heroin. He asked her to meet him at a designated place in the park where he would give her $20 for which she was to get and bring the narcotics to him. Shortly after this telephone call defendant was seen by the detectives and Federal agent to drive up alone in an automobile to the place in the park suggested by Steinkoetter. He gave her the $20 and the telephone number at the public telephone booth in the park where he could be reached. She drove off and was followed in an automobile by the Federal agent and one of the detectives. After calling Steinkoetter several times during the next several hours to tell him she could not get the requested narcotics, he told her to get marijuana. Within a short time after this last telephone conversation defendant was seen by the officers to again drive up in the same automobile, stop and hand Steinkoetter a package and drive off. Defendant had paid $2 for the package which she knew contained marijuana and returned none of the $20 to Steinkoetter. Steinkoetter immediately walked to the officers nearby and gave them the package handed him by defendant. A chemical examination of the contents of this package confirmed that it was marijuana. No contact was made during any of this time between the police officers and defendant.
Defendant and Steinkoetter had been close and intimate friends for many months before the occasion in question. She testified that between April and August he had persuaded her by threats and through their intimate relationship and her apparent sympathy for him to take narcotics to him. On many occasions she had seen him take 'pills' for what he described as pain and which she assumed were narcotics.
Defendant makes the point and argues in her brief that the court erred in refusing to instruct the jury on the defense of entrapment. The only assignment of error in her motion for new trial referring to the court's failure to instruct was 'That the court erred in refusing to accept and to offer to the jury three separate defense instructions on the subject of entrapment.' Is this assignment in her motion for a new trial tantamount to an assignment 'that the court erred in refusing to instruct the jury on the defense of entrapment', as stated in her brief, and if so, would the last quoted so-called assignment be sufficient compliance with Rule 27.20 requiring that a motion for new trial set forth in detail and with particularity the specific grounds therefor?
Where the evidence directs the submission of the defense of entrapment as a part of the law of the case and instructions on that defense are offered by defendant and refused by the court for reason that the instructions are improper, the court should properly instruct the jury on that defense and for failure to do so the court errs. State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, 620[6-8]. But that is not to say that such failure need not be specifically assigned as such in the motion for a new trial in order to be available on appeal. The failure of the court to instruct on all of the law of the case is required to be specifically called to the court's attention in a motion for new trial setting forth in detail and with particularity the grounds therefor so that the trial court may grant a new trial, if the complaint is well founded, without the delay or expense incident to an appeal. Where defendant does not specifically assign this failure to instruct as a ground for new trial, the alleged error is not preserved for appellate review. State v. Lewkowitz, 265 Mo. 613, 178 S.W. 58, 64[10-14]; State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455[15-16]; State v. Bagby, 338 Mo. 951, 93 S.W.2d 241, 249; State v. Burrell, 298 Mo. 672, 252 S.W. 709, 711; State v. Luttrell, Mo., 366 S.W.2d 453, 459. The assignment of defendant in her motion that the court refused to give three instructions offered by her points only to...
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